Assault Defenses – Penal Code Section 240
Self-Defense or Defense of Another
Self-Defense is a defense to assault. The defendant is not guilty of assault if:
- The defendant reasonably believed that he or someone else was in imminent danger of suffering bodily injury or was imminent danger of being touched unlawfully; AND
- The defendant reasonably believed that the immediate use of force was necessary to defend against that danger; AND
- The defendant used no more force than was reasonably necessary to defend against that danger.
It is important to note that belief in future harm is not sufficient for a claim of self-defense or defense of others, not matter how great or how likely the harm is believed to be.
Inability to Actually Carry Out the Assault
California Penal Code 240 requires you to have the “present ability” to commit a violent injury upon another. Therefore, a defendant cannot be convicted of assault if the defendant lacked the ability to carry out the forceful conduct.
Defendant Lacked the Requisite Intent to Commit Burglary
Under California Assault law, the defendant must have committed the act willfully. It is not sufficient for a conviction for assault that a person acted accidentally. In order to be convicted the prosecutor must prove the defendant’s requisite intent to apply force to the alleged victim.
Often whether an accused is found guilty or not guilty of an assault offense will depend upon the issue of the defendant’s “specific intent” upon entering the location in question. This means that the freedom of our clients often depends upon the “circumstantial” evidence we are able to present to show that our client did not have the required specific intent to be convicted under California Penal Code Section 240.
Intoxication
Intoxication may be a viable defense to Assault under California Penal Code Section 240. Evidence to establish the intent is almost always circumstantial. The defendant may offer evidence of intoxication on the issue whether he or she actually formed the required specific intent.
Consent
In some cases we can show that the alleged victim actually consented to the assault. That is, if we can show that the contact was invited or even welcomed, then our client will not be found guilty of assault.
